Chompupong v. City of Schenectady

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

VIROJ CHOMPUPONG and

MALINEE CHOMPUPONG,

Plaintiffs,

vs. 1:17-cv-929

(MAD/CFH)

CITY SCHENECTADY,

JOHN DOES 1-10 and XYZ CORP. 1-10,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

TARTER KRINKSY & DROGIN LLP ANTHONY D. DOUGHERTY, ESQ.

1350 Broadway LINDA S. ROTH, ESQ.

New York, New York 10018

Attorneys for Plaintiffs

MURPHY BURNS LLP JAMES J. BURN, ESQ.

407 Albany Shaker Road

Loudonville, New York 12211

Attorneys for Defendant City of Schenectady

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Viroj and Malinee Chompupong commenced this action on August 22, 2017,

asserting claims against the City of Schenectady (the "City"), Jackson Demolition Service, Inc.

("Jackson"), the Schenectady Metroplex Development Authority ("Metroplex"), and unnamed

John Does and XYZ Corps. See Dkt. No. 1. The Chompupongs asserted claims for due process

and unlawful taking in violation of 42 U.S.C. § 1983 and conspiracy to do so against the City and

Metroplex. Plaintiffs further asserted claims against the City for abuse of authority, trespass,

negligence, and intentional destruction of property. Finally, the Chompupongs alleged a violation

of 42 U.S.C. § 1983, trespass, negligence, and intentional destruction of property against Jackson.

In March of 2019, Defendants each filed separate motions to dismiss for failure to state a

claim. Dkt. Nos. 35, 38 & 39. On July 24, 2019, the Court issued a Memorandum-Decision and

Order granting in part and denying in part the City's motion to dismiss, and granting in their

entirety Metroplex's and Jackson's motions to dismiss. Dkt. No. 58.

On July 27, 2020, the City moved for summary judgment on Plaintiffs' remaining claims.

Dkt. No. 79. For the reasons set forth below, the City's motion is granted in part and denied in

part.

II. BACKGROUND

Plaintiffs, the Chompupongs, are individuals and residents of the State of New York and

were the owners of real property in Schenectady, referred to as the Nicholaus Building. See Dkt.

No. 79-2 at ¶ 1. Defendant City of Schenectady, is a State of New York municipality. Id. at ¶ 2.

The Chompupongs purchased the Nicholaus Building on February 3, 2004. Id. at ¶ 3. The

ground floor of the Nicholaus Building was leased to commercial tenants while the three

apartments on the upper floors were leased to residential tenants. Id. On April 1, 2016, the

Nicholaus Building was damaged as a result of construction work on or related to the Electric City

Apartments development project adjacent to the Nicholaus Building. Id. at ¶ 4. Because of this

damage, on April 1, 2016, the City issued an order to vacate the Nicholaus Building, which was

accordingly evacuated. Id. at ¶¶ 5-7.

After the Nicholaus Building was damaged, it was shored up and stabilized by the City

and Metroplex, with the assistance of various engineers and contractors. See id. at ¶ 19. Around

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June 2016, an entity, but not the City, hired Ausfeld & Waldruff Surveyor, LLC ("A&W") to

provide survey monitoring and measurements for the Nicholaus Building. Id. at ¶ 20.

Although the Chompupongs gave the inspector permission to enter, the Mayor of the City

obtained a search warrant before entering the building on November 29, 2016. Id. at ¶ 23. The

building was inspected on December 1, 2016, and nine "Unsafe Structure" code violations were

issued, which called for corrective action by December 12, 2016. Id. at ¶ 24. Following a

structural evaluation by M.J. Engineering and Land Surveying, P.C. ("M.J. Engineering") on

December 6, 2016, a report was issued on December 21, 2016, which recommended "that

immediate action be taken to stabilize the building foundations and repair the noted structural

deficiencies," and that "[i]n the event that [the] building cannot be stabilized immediately, the

structure should be demolished to prevent further de-stabilization of the structure and potential

failure." Id. at ¶ 27.

On March 6, 2014, A&W took additional monitoring points that had been monitored on

the northeast and west faces of the Nicholaus Building in June 2016. Id. at ¶ 31. Christopher

Dooley, P.E. received the survey monitoring data complied by A&W on March 7, 2017. Id. at ¶

32. Mr. Dooley then spoke with A&W for further clarification. Id. at ¶ 33. M.J. Engineering

then prepared another report on March 20, 2017, to discuss the findings and his professional

recommendations based the surveying monitoring data, which was sent to Carl Falatico,

Corporation Counsel of the City. Id. at ¶ 34.

M.J. Engineering concluded that the Nicholaus Building shifted and displaced to the west.

Id. at ¶ 36. M.J. Engineering stated that the Nicholaus Building should immediately be

permanently stabilized or, if not, demolished. Id. at ¶ 37. The Letter Report of M.J. Engineering

was signed by Mr. Dooley, a licensed professional engineer in the State of Vermont. Id.

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On March 29, 2017, Mr. Dooley received additional monitoring data taken on that day

from A&W, which revealed no additional movement since the previous recording. Id. at ¶ 39.

On April 7, 2017, Mr. Dooley met with Robert Gach, an attorney representing Metroplex,

Schenectady Fire Chief Senecal, and Corporation Counsel Falotico. Id. at ¶ 40. Mr. Dooley

stated at the meeting that due to the lack of permanent stabilization, the Nicholaus Building was

an immediate threat to collapse and that M.J. Engineering would not recommend waiting any

amount of time to address the threat. Id. at ¶ 44. Mr. Dooley then prepared a Structural

Assessment Letter that same day reiterating these assessments and emailed it to Mr. Falatico. Id.

The City's Acting Building inspector, Dominick Viscariello, reviewed the Structural

Assessment Letter from Mr. Dooley that afternoon. Id. at ¶ 45. Mr. Viscariello authorized the

demolition of the Nicholaus Building pursuant to City Code § 138-30(f), which grants the

Building Instructor authority to order the demolition of a building that poses an imminent danger

to human life or health. Id. at ¶¶ 45-47.

Mr. Viscariello then prepared a Notice of Violation stating that the Nicholaus Building

was unsafe and needed to be demolished and affixed the Notice to the door of the Nicholaus

Building, as well as a Notice of Violation to the owner of the Nicholaus Building, which was also

affixed to the door of the building stating that the building was unsafe due to major structural

failures and needed to be demolished immediately. Id. at ¶ 48.

Counsel for the Chompupongs was notified that afternoon by telephone that the Nicholaus

Building had shifted by less than half an inch, was allegedly in danger of collapse, and, based on

the City's police authority, would be demolished immediately. Id. at ¶ 49.

The Chompupongs strongly objected to the demolition of the Nicholaus Building and

made an emergency application to the Honorable Thomas Buchanan of the Supreme Court of the

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State of New York, County of Schenectady, to stay the demolition. Id. at ¶ 50. Justice Buchanan

denied the request for a stay, and Jackson proceeded to demolish the Nicholaus Building. Id. at ¶¶

51-52.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the

court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at

36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a

motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56 (c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the

court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the

motion or fails to dispute the movant's statement of material facts, the court may not rely solely on

the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to

evidence in the record support the movant's assertions. See Giannullo v. City of New York., 322

F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the

motion for summary judgment "would derogate the truth-finding functions of the judicial process

by substituting convenience for facts").

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"Assessments of credibility and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426

F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted). "However, '[t]he mere existence of a

scintilla of evidence in support of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson, 477

U.S. at 252 (emphasis and alterations in original)). "To defeat summary judgment, therefore,

nonmoving parties 'must do more than simply show that there is some metaphysical doubt as to

the material facts,' ... and they 'may not rely on conclusory allegations or unsubstantiated

speculation.'" Id. (quotations omitted).

B. Fourth Amendment Illegal Seizure

The City asserts that it is entitled to summary judgment on Plaintiffs' Fourth Amendment

claims because emergency circumstances existed which made the demolition of the Nicholaus

Building reasonable. Dkt. No. 79-16 at 3-4. The Court disagrees.

"The Fourth Amendment, made applicable to the States by the Fourteenth ... provides in

pertinent part that the right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated." Soldal v. Cook Cty., Ill., 506

U.S. 56, 61 (1992) (internal citation and quotation marks omitted). "A 'seizure' of property occurs

when there is some meaningful interference with an individual's possessory interests in that

property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). The removal of one's home is

undoubtably a seizure under the Fourth Amendment and therefore must be reasonable. See

Soldal, 506 U.S. at 61-62; see also DeBari v. Town of Middleton, 9 F. Supp. 2d 156, 161

(N.D.N.Y. 1998) ("Where, as here, the government demolishes a building, a 'seizure' results

within the meaning of the Fourth Amendment").

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"[E]mergency demolition of a private citizen's property implicates procedural due process

considerations under the Fifth and Fourteenth Amendments." Smith v. City of Albany, No. 1:03-

CV-1157, 2006 WL 839525, *10 (N.D.N.Y. Mar. 27, 2006). Where the defendant raises issues of

emergency circumstances requiring demolition of a property, "the legality of defendants' conduct

... turns on its reasonableness and the existence of an alleged emergency." Id. (citing Soldal v.

Cook Cty., Ill., 506 U.S. 56, 61-61 (1992)) (other citation omitted).

"Though the test of reasonableness 'is not capable of precise definition or mechanical

application,' ... it generally requires a 'careful balancing of government and private interests.'"

DeBari, 9 F. Supp. 2d at 163 (quoting Bell v. Wolfish, 441 U.S. 520, 558 (1979); Soldal, 506 U.S.

at 71) (other citation omitted). Whether emergency circumstances existed is often a question for

the jury. See Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir. 1983); Heidorf v. Town of

Northumberland, 985 F. Supp. 250, 259 (N.D.N.Y. 1997). Thus, the question of reasonableness

based on emergency circumstances is generally one more properly left for the jury. DeBari, 9 F.

Supp. 2d at 163 (quoting Catanzaro v. Weiden, 140 F.3d 91, 94 (2d Cir. 1998)) (other citations

omitted). However, where a plaintiff fails to present evidence sufficient to rebut the defendant's

evidence of emergency circumstances, summary judgment is appropriate. See Smith, 2006 WL

839525, at *15.

The City asserts that there is no issue of material fact that emergency circumstances

existed and that, therefore, the immediate demolition of the Nicholaus Building was reasonable.

Dkt. No. 79-16 at 2-4. In December 2016, engineer Christopher Dooley inspected the Nicholaus

Building and recommended stabilization or, if not possible, demolition. Dkt. No. 79-3 at ¶ 10;

Dkt. No. 79-6 at 2-3. The City did not seek demolition after receiving the report. In February

2017, Plaintiffs provided the City with a report prepared by Lakeside Engineering stating that

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"[t]he building does not pose an imminent danger since it is a condemned structure and has been

properly temporarily stabilized." Dkt. No. 82-20 at 24.

On March 6, 2017, three months after Mr. Dooley's inspection, A&W survey data showed

that the left wall of the Nicholaus building had moved about half an inch. Dkt. No. 82-23 at 1.

Mr. Dooley received the data on March 7, 2017. Dkt. No. 79-3 at ¶ 13. On March 20, 2017, Mr.

Dooley again recommended that the Nicholaus Building be immediately stabilized or demolished.

Dkt. No. 82-26 at 2. Mr. Dooley also recommended that the building continue to be monitored on

a monthly basis. Id. at 2.

Eighteen days later, on April 7, 2017, the City sought clarification from Mr. Dooley to

determine "if it is safe to wait 7-10 days to address the stability of the Building given the

continued movement." Dkt. No. 79-9 at 2. In response, Mr. Dooley stated that he "would not

recommend waiting any given amount of time to address the condition of the building. Id. Acting

building inspector Dominick Viscariello then made the decision pursuant to City Code § 138-

30(f) to immediately demolish the Nicholaus Building. Dkt. No. 79-10 at ¶¶ 11-13.

The parties do not dispute the time line as presented. However, it is hotly contested

whether an emergency actually existed. The City relies on Smith and asserts that because

Plaintiffs have failed to submit admissible expert testimony that the Nicholaus Building was not

an immediate threat to public safety summary judgement must be granted. Dkt. No. 86 at 1. In

Smith, all parties agreed that the "[d]efendants' decision to demolish plaintiff's building was a

'quick determination.'" Smith, 2006 WL 839525, at *11. "Despite the 'quick' nature of the

decision-making in this case, all public officials involved were in 'consensus' regarding the

proposed demolition." Id. The building was demolished the next day. Id. at *14. The defendants

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there submitted two expert opinions demonstrating the need for demolition, on which they based

their decision to demolish the building. Id. at *12.

Unlike Smith, the City did not act swiftly in its decision to demolish the building. Despite

Mr. Dooley's recommendations, the City did not move forward for over a week. Also significant,

Mr. Dooley's recommendations were based on data collected over a month prior to the City's

decision to demolish the Nicholaus building. Dkt. No. 82-23 at 1.

While Mr. Dooley's April 7, 2017 report clarified the earlier report from March 20, 2017,

his report on March 20, 2017 similarly stated the Nicholaus Building should be "stabilized

immediately" or demolished. Dkt. No. 82-26 at 2. However, on April 7, 2017, Mr. Dooley

clarified that, despite recommending that the building be monitored on a monthly basis, that the

building was in danger of collapsing immediately. Dkt. No. 79-9 at 1. Thus, on March 20, 2017,

the City was aware that immediate action was necessary to stabilize the building but possibly

unaware that the building would collapse until April 7, 2017.

City Code § 138-30 requires the City to give notice to the building owner of defects

rendering a building unsafe. Dkt. No. 79-13 at 2-3; City Code § 138-30(c). The City Code allows

the City to forgo the notice requirement where there is an emergency. Dkt. No. 79-13 at 2-3; City

Code § 138-30(f). It is apparent that the City's duty to provide Plaintiffs with notice of the defects

arose on March 20, 2017, when Mr. Dooley called for immediate stabilization of the property.

Dkt. No. 82-26 at 2. The City then chose to sit on its obligation for eighteen days until they

determined whether an emergency existed.

The City now seeks to have Mr. Dooley's April 7, 2017 report retroactively establish that

the Nicholaus Building was in danger of immediately collapsing since March 6, 2017 when it

shifted about half of an inch. The City does not clarify why it failed to act swiftly to confirm the

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existence of emergency circumstances following the March 20, 2017 report, and why it took them

eighteen days to ask Mr. Dooley if the Nicholaus Building could stand for another seven-to-ten

days. This delay on behalf of the City is sufficient to create a genuine issue of material fact as to

whether the demolition of the Nicholaus building without adequate notice to Plaintiffs and a pre-

deprivation hearing was reasonable.

Accordingly, the Court denies the City's motion for summary judgment as to Plaintiffs'

Fourth Amendment illegal seizure claim.

C. Fifth Amendment

The City asserts that it is entitled to summary judgment on Plaintiffs' Fifth Amendment

claims because emergency circumstances rendered the demolition of the Nicholaus Building a

reasonable use of its police powers. Dkt. No. 79-16 at 3-4. The Court disagrees.

"'In the exercise of its police powers [a] municipality may demolish a building without

providing notice and an opportunity to be heard if there are exigent circumstances which require

immediate demolition of the building to protect the public from imminent danger.'" Iavarone v.

City of New York, 129 A.D.3d 776, 777 (2d Dep't 2015) (quoting One Monroe, LLC v. City of

New York, 89 A.D.3d 812, 813 (2d Dep't 2011)) (alterations in original).

[W]here there is competent evidence allowing the official to

reasonably believe that an emergency does in fact exist, or that

affording predeprivation process would be otherwise impractical,

the discretionary invocation of an emergency procedure results in a

constitutional violation only where such invocation is arbitrary or

amounts to an abuse of discretion.

Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999). An emergency exists and "[a] town may

exercise its emergency police power only where there is a 'dire necessity' to act and where 'its

action is reasonably calculated to alleviate or prevent the crisis condition.'" Scott v. Town of

10

Duanesburg, 176 A.D.2d 989, 991 (3d Dep't 1991) (quoting Belle Harbor Realty Corp. v. Kerr,

35 N.Y.2d 507, 512 (1974)).

"Under Hodel, the due process guarantee is offended only when an emergency procedure

is invoked in an abusive and arbitrary manner; therefore, there is no constitutional violation unless

the decision to invoke the emergency procedure amounts to an abuse of the constitutionally

afforded discretion." Catanzaro, 188 F.3d at 62 (citing Hodel v. Virginia Surface Min. &

Reclamation Ass'n, Inc., 452 U.S. 264, 302–03 (1981)). "Whether the official abused his

discretion or acted arbitrarily in concluding that a genuine emergency exists is a factual issue,

subject to the usual considerations for a district court addressing a summary judgment motion."

WWBITV, Inc. v. Vill. of Rouses Point, 589 F.3d 46, 51 (2d Cir. 2009). "Summary judgment may

not be awarded where there is a genuine issue of fact as to whether officials acted arbitrarily in

declaring an emergency." Id.

"A municipal demolition of an imminently dangerous structure in order to protect the

public is an exercise of the police power and does not constitute a 'taking.'" Wantanabe Realty

Corp. v. City of New York, 315 F. Supp. 2d 375, 401 (S.D.N.Y. 2003) (citations omitted).

However, to warrant summary judgment it must be clear that "the [b]uilding posed an imminent

danger" and not just that it was in a state of despair. Libbey v. Vill. of Atl. Beach, 982 F. Supp. 2d

185, 211 (E.D.N.Y. 2013). A delay on behalf of the municipality to act to use its police powers in

an emergency situation may create an issue of material fact that circumstances were not imminent

and, therefore, that the government officials acted arbitrarily. WWBITV, 589 F.3d at 51 (citing

Burtnieks, 716 F.2d at 984) ("In Burtnieks, the existence of a three-month delay between when the

city declared an emergency and when it demolished Burtniek's building gave rise to a genuine

issue as to whether the defendants acted arbitrarily in proclaiming a need to protect the public by

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condemning the structure without providing its owner a pre-deprivation opportunity to be heard");

see also Ferreira v. Town of E. Hampton, 56 F. Supp. 3d 211, 228 (E.D.N.Y. 2014) ("The

existence of a significant delay between recognition of a supposed emergency and the act to

remedy that condition could, inter alia, support a reasonable finding that the Town officials acted

arbitrarily in declaring the conditions on the Property to be an immediate danger to the public");

Scott, 176 A.D.2d at 991 ("Moreover, the fact that over two weeks elapsed from the date of the

engineering report to defendant's June 8, 1989 meeting in and of itself defeats the claim that there

was insufficient time to give plaintiff reasonable notice and an opportunity to be heard").

Plaintiffs have failed to rebut the City's expert opinion with expert evidence that the

building was not in imminent danger of collapsing. Rather, Plaintiffs highlight that the City had

all the evidence they used to determine that the Nicholaus Building was in danger of collapsing

for a month before ordering its demolition and, therefore, the demolition of the Nicholaus

Building was an improper use of the City's police powers. See Dkt. No. 81-4 at 11. The Court

agrees.

The City acted immediately after declaring an emergency, but did so with information in

its possession for weeks. See Dkt. No. 82-26 at 2. While Mr. Dooley's April 7, 2017 report

clarified the earlier report from March 20, 2017, his report on March 20, 2017 similarly stated that

the Nicholaus Building should be "stabilized immediately" or demolished. Id. However, on April

7, 2017, Mr. Dooley clarified that, despite recommending that the building be monitored on a

monthly basis, that the building was in danger of collapsing immediately. Dkt. No. 79-9 at 1.

Once the City was informed that the Nicholaus Building was in danger of collapsing immediately,

the City ordered its demolition. Dkt. No. 79-10 at 11-13. Thus, on March 20, 2017, the City was

12

aware that immediate action was necessary to stabilize the building but possibly unaware that the

building would collapse until April 7, 2017.

As the noted above, the City's duty to provide the Plaintiffs with notice of the defects of

the Nicholaus Building arose on March 20, 2017, when Mr. Dooley called for immediate

stabilization of the property. Dkt. No. 79-13 at 2-3; City Code § 138-30(c); Dkt. No. 82-26 at 2.

The City then delayed for eighteen days until they determined whether an emergency existed. By

doing so, a jury could reasonably conclude that the City abused its discretion or acted arbitrarily

and similarly by failing to give Plaintiffs a pre-deprivation hearing when they waited eighteen

days to ask Mr. Dooley if the building could stand for seven more. The City does not address in

their motion for summary judgment why they waited to inform Plaintiffs, knowing that emergency

circumstances were looming.

In Scott, the defendant waited two weeks to follow up on the engineer's report, which only

concluded that the plaintiff's building was in "'limited' danger of collaps[ing]." Scott, 176 A.D.2d

at 991. The Third Department stated that the two week delay was sufficient time to give the

plaintiff notice prior to demolition of the property. Id. Here, the City waited eighteen days and

were told the building was in need of immediate stabilization. As the Second Circuit articulated

in Burtneik, "it is difficult to discern how [the municipality's] interest would have been

compromised or diminished by granting appellant a hearing prior to the demolition." Burtnieks,

716 F.2d at 987.

Accordingly, there exists is a question of material fact as to whether the City acted

arbitrarily or abused its discretion and therefore summary judgment on Plaintiffs' Fifth

Amendment claim is denied.

D. Monell Claim

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The City asserts that it is entitled to summary judgment on Plaintiffs' Monell claims

because, by failing to present an official policy or name a policy maker, Plaintiffs have failed to

adequately plead a Monell claim. Dkt. No. 79-16 at 6-8. The Court agrees.

"'[T]o hold a [municipality] liable under § 1983 for the unconstitutional actions of its

employees, a plaintiff is required to plead and prove three elements: (1) an official policy or

custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.'" Wray

v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (quotation omitted). "'[A] municipality

cannot be made liable [under § 1983] by application of the doctrine of respondeat superior,' ... but

rather the plaintiff must 'demonstrate that, through its deliberate conduct, the municipality was the

moving force behind the alleged injury.'" Lucente v. Cty. of Suffolk, 980 F.3d 284, 297 (2d Cir.

2020) (quotations omitted). "Although 'official policy' often refers to formal rules or customs that

intentionally establish 'fixed plans of action' over a period of time, when a municipality 'chooses a

course of action tailored to a particular situation,' this may also 'represent[ ] an act of official

government 'policy' as that term is commonly understood.'" Montero v. City of Yonkers, 890 F.3d

386, 403 (2d Cir. 2018) (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir.

2004)) (alteration in original).

"Under Monell, '[o]fficial municipal policy includes the decisions of a government's

lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.'" Id. (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011))

(alterations in original). Where a party does not assert "that the actions complained of were taken

pursuant to a local policy that was formally adopted or ratified but rather that they were taken or

caused by an official whose actions represent official policy, the court must determine whether

that official had final policymaking authority in the particular area involved." Jeffes v. Barnes,

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208 F.3d 49, 57 (2d Cir. 2000). "It does not suffice for these purposes that the official has been

granted discretion in the performance of his duties." Id. "'[O]nly those municipal officials who

have 'final policymaking authority' may by their actions subject the government to § 1983

liability.'" Id. (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)) (alterations in

original).

The City asserts that Plaintiffs have failed to adequately plead a Monell claim by failing to

present an official policy or name a policy maker as required by Monell. Dkt. No. 79-16 at 6-8.

Plaintiffs rely on Pembaur in support of their assertion that a Monell claim is properly asserted

where a plaintiff demonstrates a single improperly made decision that is an act of governmental

policy. Dkt. No. 81-4 at 14-15. Plaintiffs' reliance is misplaced.

The two page long passage Plaintiffs quote in their brief refers to municipal liability for

actions made by a "policymaker" or an "authorized decisionmaker." Pembaur v. City of

Cincinnati, 475 U.S. 469, 480-81 (1986). Plaintiffs' quote stops short of the true test for

municipal liability based on a single decision. The Supreme Court continued to say, "[h]aving

said this much, we hasten to emphasize that not every decision by municipal officers

automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where

the decisionmaker possesses final authority to establish municipal policy with respect to the action

ordered." Id. at 481; see also Agosto v. New York City Dep't of Educ., ___ F.3d ___, 2020 WL

7086060, *7 (2d Cir. Dec. 4, 2020) ("The Supreme Court has said that a municipality may be

liable for the acts of a single official—but only if that official is someone 'whose edicts or acts

may fairly be said to represent official policy' for the entire municipality").

Further, "[t]he fact that a particular official—even a policymaking official—has discretion

in the exercise of particular functions does not, without more, give rise to municipal liability

15

based on an exercise of that discretion." Pembaur, 475 U.S. at 481–82. Despite highlighting that

Mr. Viscariello was authorized to make the decision to demolish the Nicholaus Building,

Plaintiffs do not assert that Mr. Viscariello is a policymaker. Dkt. No. 81-4 at 14-15. As stated in

Pembaur, this is insufficient to establish that Mr. Viscariello's decision may impose liability on

the City.

Second, Plaintiffs do not assert any government policy which resulted in the demolition of

the Nicholaus Building–aside from City Code § 138-30(f). See id. Such a failure is insufficient to

demonstrate a claim under Monell. See Seedan Real Estate Holding, LLC v. Leary, No. 3:16-CV-

00595, 2018 WL 6830707, *12-13 (N.D.N.Y. Dec. 28, 2018) (holding that the plaintiff failed to

allege a government policy as required by Monell where the plaintiff merely presented the

authorizing statute); see also Kimble v. Kingston City Sch. Dist., 792 Fed. Appx. 80, 82 (2d Cir.

2019) ("However, it is settled Second Circuit law that, to prevail under a Monell theory of

municipal liability, plaintiffs must do more than 'merely assert[ ]' the existence of a municipal

policy or custom leading to a rights violation") (alteration in original).

Plaintiffs have failed to present any evidence demonstrating a constitutional violation

resulting from a government policy or from a decision by a policymaker. Therefore, the City's

motion for summary judgment on Plaintiffs' Monell claims are granted.1

E. State Law Claims

Finally, the City moves for summary judgment on Plaintiffs' four state law claims: abuse

of authority, trespass, negligence, and intentional destruction of property. Dkt. No. 79-16 at 10.

1 The City asserts that, should the Court determine that Mr. Viscariello is a policy maker,

qualified immunity would apply. Dkt. No. 79-16 at 8-10. As Plaintiffs note, Mr. Viscariello is

not a named defendant. Dkt. No. 81-4 at 15-16. Regardless, as the Court has granted summary

judgment regarding Plaintiffs' Monell claims, it will not address the City's qualified immunity

argument.

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The City asserts that the demolition of the Nicholaus building was a reasonable exercise of its

police powers under City Code § 130-38(f) and because they are entitled to government function

immunity. Id. at 11-12. The Court disagrees. Having already determined that there is an issue of

material fact as to whether an emergency existed, summary judgment on Plaintiffs' state law

claims based on the police powers theory must be denied. The Court will therefore only examine

the City's governmental immunity argument.

"Although [New York] long ago waived sovereign immunity on behalf of itself and its

municipal subdivisions, the common-law doctrine of governmental immunity continues to shield

public entities from liability for discretionary actions taken during the performance of

governmental functions." Valdez v. City of New York, 18 N.Y.3d 69, 75–76 (2011). "This

limitation on liability reflects separation of powers principles and is intended to ensure that public

servants are free to exercise their decision-making authority without interference from the courts."

Id. at 76. "[A] state or municipal defendant engaging in a governmental function can avoid

liability if it timely raises the defense and proves that the alleged negligent act or omission

involved the exercise of discretionary authority." Id.

While municipalities "are absolutely immune from suit for judicial and quasi-judicial

discretionary acts involving the conscious exercise of discretion ..., discretionary acts that do not

'requir[e] the application of governing rules to particular facts, an exercise of reasoned judgment

which could typically produce different acceptable results,' do not receive absolute immunity."

Scott, 176 A.D.2d at 991–92 (internal citation and quotation omitted) (alterations in original).

"The decision to demolish without giving notice and an opportunity to be heard cannot be

classified as a discretionary decision as fundamental due process compels the result ... removing

discretion." Id. at 992 (holding that a two week delay in following up on the engineer's report was

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sufficient to demonstrate that the city had time to provide notice and therefore governmental

immunity did not apply) (citations omitted).

Plaintiffs rely on Scott for their assertion that governmental immunity does not apply in

this case. Dkt. No. 81-4 at 17. The City asserts that Scott is inapplicable because in Scott "[t]he

May 24, 1989 engineering report, based on a May 2, 1989 inspection, indicated that the residence

was in 'limited' danger of collapse." Scott, 176 A.D.2d at 991. Unlike the report in Scott, Mr.

Dooley's April 7, 2017 report made clear that, "the Nicholaus Building was ... a threat to collapse

immediately." Dkt. No. 79-9 at 1. Mr. Dooley recommended immediate action to "address the

condition of the building." Id.

It is clear from Mr. Dooley's report that by April 7, 2017 immediate action was necessary.

As in Scott, here, City Code § 130-38(f) required notice to Plaintiffs of the structural defects. Dkt.

No. 79-13 at 2-3; City Code § 130-38(c). The City's duty to provide Plaintiffs with notice of the

defects of the Nicholaus Building arose on March 20, 2017, when Mr. Dooley called for

immediate stabilization of the property. Dkt. No. 79-13 at 2-3; City Code § 138-30(c); Dkt. No.

82-26 at 2. Like Scott, the City's delay in following up on the engineer's report demonstrates

sufficient time to provide notice. There was clearly time for a hearing and, like Scott, "[t]he

decision to demolish without giving notice and an opportunity to be heard cannot be classified as

a discretionary decision as fundamental due process compels the result ... removing discretion."

Scott, 176 A.D.2d at 992. Thus, governmental immunity does not apply. Id.

Accordingly, the Court denies the City's motion for summary judgment based on

governmental immunity.

IV. CONCLUSION

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After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the City of Schenectady's motion for summary judgment (Dkt. No. 79) is

GRANTED in part and DENIED in part; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED. if

Pe Deeb 18 Lah P lhgertn

U.S. District Judge

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